THE COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


LuAnn Nowill,

Petitioner

v. Docket No. CR-08-558

State Board of Retirement,


Respondent

Appearance for Petitioner:


Pro Se


16 Elm Avenue
West Springfield, MA 01089


Appearance for Respondent:


Melinda E. Troy, Esquire

Legal Department
State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02108


Administrative Magistrate:


Judithann Burke

SUMMARY OF DECISION

Registered Nurse II at Holyoke Soldier's Home who works on Alzheimer's/ Dementia Unit is entitled to Group 2 classification as she is "required to have the care, custody, instruction or other supervision of…persons who are mentally ill or mentally defective…".


DECISION


Pursuant to G.L. c. 32 s. 16(4), the Petitioner, LuAnn Nowill, is appealing from the August 1, 2008 decision of the Respondent, State Board of Retirement, (SBR), denying her request to be classified in Group 2 for retirement purposes. (Exhibit 1). The appeal was timely filed. (Exhibit 2). The Petitioner elected to waive her right to a hearing and the parties submitted their cases on the documents. (Exhibits 3 and 4). The last of the filings was received at the Division of Administrative Law Appeals (DALA) on January 5, 2009. Eleven (11) exhibits were marked. An Exhibit List has been provided at page 6 of this Decision. Both parties also filed pre-hearing memoranda of law. The Petitioner's memorandum has been marked as "Attachment A", and, the SBR's memorandum has been marked as "Attachment B".


FINDINGS OF FACT

Based upon the documents submitted by the parties in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, LuAnn Nowill, d.o.b. 06/06/1953, is employed as a Registered Nurse II at the Holyoke Soldier's Home (HSH). From May 2005 to the present, she has been assigned to the "Alzheimer's Unit", also known as the "Dementia Unit". (Exhibits 9 and 11).

2. The Petitioner is the Charge Nurse on the 3:00 PM to 11:00 PM shift at HSH. She is supervised by a Registered Nurse Supervisor and an Assistant Registered Nurse Supervisor. As a Registered Nurse II, the Petitioner performs primary direct nursing care to the twenty-five (25) residents on the unit. This is not a supervisory position, according to the Department of Human Resources (DHR) Classification Specifications. (Id. and Exhibit 6).

3. The dementia residents on the Petitioner's unit have progressively declining memories and intellectual functioning. The Alzheimer's residents on the unit have short-term memory loss, confusion, disturbances in sleep resulting in wandering and other adverse behaviors at night, anxiety, irritability, aggressiveness, anger outbursts, suspiciousness and paranoia. The Alzheimer's residents also experience a progressive loss of the ability to function independently, loss of the ability to maintain social skills, disorientation to time and place, loss of language and motor deficits that cause frequent falls and bladder and bowel incontinence. (Attachment A and Exhibit 7).

4. The Alzheimer's Unit at HSH is a "secured" or "locked" unit. The unit houses twenty- five (25) male residents all of whom wear alarm bracelets that activate an alarm on the locked entry door if the door is breached. It is common for the Alzheimer's residents to exhibit "exit seeking" behavior and attempt to leave the unit. The Petitioner and other staff members have been accosted when they have attempted to redirect the residents away from the door and back onto the unit or when they have physically intervened in order to prevent a resident from leaving the unit. (Id.).

5. The Petitioner regularly assists the Certified Nurse Aids on the unit with personal care and feeding, and, she intervenes daily in situations wherein a resident is verbally and or physically combative with a caregiver. The residents have frequently displayed aberrant behavior such as: throwing a chair through a window; throwing food or liquid; fighting another resident with fists or a walker; "whipping" a caregiver with an article of clothing; and employing sexual and degrading talk. (Id.).

6. Many of the residents on the unit have been "Section 12'd," meaning that they have been legally determined to be a threat/risk to themselves or others, during their residency. These patients have necessitated transfer to the care of the ER Crisis Team or to an acute psychiatric facility. The Petitioner has been directly involved in such crisis situations, and, she has been directly involved in the decision-making and transfer processes. (Id.).

7. All of the residents are on some psychiatric medication or another. The Petitioner is responsible for dispensing the medications to the residents. These medications include: antidepressants; anti-anxiety medications; anti-psychotics and sedatives. The residents' psychiatric illnesses are coupled with a vast array of medical conditions that require the Petitioner's nursing expertise. On the Petitioner's shift, some residents are prone to "sun-down" behavior. This behavior is particular to the Alzheimer's patients who become more psychotic in the early evening. The medications administered by the Petitioner are vital to the management of these residents' psychiatric and physical conditions. It is necessary for the Petitioner to approach each resident with an awareness of the potential of bodily harm to herself, but with enough control and coaxing to encourage the resident to take his medication. Sometimes, a resident will refuse his medication and the Petitioner will be subject to adverse behavior for this reason. (Id.).

8. On or about June 18, 2008, the Petitioner requested that the SBR classify her in Group 2 for retirement purposes. (Exhibits 5 and 11).


9. The SBR denied the Petitioner's request and classified her in Group 1 on July 31, 2008. (Exhibit 1).

10. The Petitioner filed a timely appeal. (Exhibit 2).

CONCLUSION


After a careful review of all of the evidence in this case, I have concluded that the Petitioner is entitled to prevail in this appeal. She has met her burden of proving that her "regular and major duties require her to have the care, custody, instruction or other supervision of…persons who are mentally ill or mentally defective…," as is required in G.L. c. 32, § 3(2)(g). The SBR denied the Petitioner's request to be classified in Group 2 because the HSH provides medical and not mental health services to the resident veterans. This is not a valid argument that would serve to exclude the Petitioner from classification in Group 2. It should be noted that treatment in or by a mental health provider or ones residence in a mental hospital are not requirements in the statute. The uncontroverted evidence in this case is that all of the twenty five (25) residents on the secure HSH Alzheimer's/Dementia Unit are on psychiatric medications along with medications for physical issues. Further, all of these men have cognitive and social difficulties. There is a great deal of resistance to care and acting out due to the residents' mental confusion. It is clear that these residents are mentally defective, a term employed here without moral or social judgment. They are in the HSH because of their inability to care for themselves, in large part because of their mental infirmities and related behavioral aberrations. Contra, Jacqueline Miers v. State Board of Retirement, CR-06-441 (DALA 2002) a case cited by the Respondent, where the employee worked as a Certified Nurse Aide on a unit which housed patients with neuromuscular disorders, some, but not all of whom, suffered from depression and a few who had attempted suicide. Care of a scattered few mentally ill or defective persons was not part of
Miers' "regular and major duties".


The SRB also denied the Petitioner's request for Group 2 classification because she is a Charge Nurse who oversees other staff members and completes the required documentation for each shift. The Petitioner's role as a Charge Nurse does not exclude her from Group 2. The Petitioner is a Registered Nurse II, a professional, not supervisory, job in the state's Registered Nurse Series. Further, as the Respondent has pointed out in its pre-hearing memorandum, group classification depends upon an employee's current job duties, and not job title, at the time of retirement. Maddocks v. Contributory Retirement Appeal Board, 369 Mass. 488 (1976). The Petitioner works on a locked ward. She provides hands-on care nursing care to the residents at HSH. She also assists the Certified Nurse Aids in the feeding and personal care of the residents. She is responsible for dispensing the medications to the residents. She must be on high alert and monitor the safety of the residents and her staff. Her position is more appropriately classified in Group 2, rather than the catch-all, clerical and administrative class of jobs listed in Group 1.

Accordingly, the decision of the State Board of Retirement is hereby reversed. This matter is remanded to said board for purposes of classifying LuAnn Nowill in Group 2.

Division of Administrative Law Appeals,

/s/
Judithann Burke
Administrative Magistrate


DATED: July 24, 2009


EXHIBIT LIST


Exhibit No. Document Description
1 -- Denial letter August 2, 2008
2 -- Letter of appeal August 6, 2008
3 -- Petitioner's request to waive hearing
4 -- Administrative Magistrate's letter to parties December 4, 2008
5 -- Incomplete Group Classification Questionnaire
6 -- Classification Specifications Registered Nurse Series
7 -- Petitioner's medical records and patient incident reports
8 -- Various HSH blank charts
9 -- June 2006 performance review
10 -- Website information on HSH
11 -- Page 1 of Group Classification Questionnaire